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Class J 4^0 
Book •K'59 



CONFISOATEI) PROPERTY. 



SPEECH 



HON. F. KERN AN, OF NEW YORK, 

DELIVERED 

IN THE HOUSE OP REPRESENTATIVES, FEBRUARY i, 1861. 



The Joint Resolution to amend the Act to sup- 
press insurrection, to punish treason and rebellion, 
to seize and confiscate the property of rebels, and 
for other purposes, being under consideration — 

Mr. KERN AN said: 

Mb. Speaker : I am very reluctant to occupy 
^the time of the House, and it waa upon no 
suggestion of mine that objection was made 
to the chairman of the Committee on the Ju- 
diciary closing the debate, to the end that I 
should say a few words. I had a desire at an 
earlier stage of this debate to state my views 
in reference to this question. 

Sir, as I have observed this discussion, 
and as I understand it, those who insi'st that 
the Federal Government can forfeit the lands 
of the people in rebellion in fee, may proper- 
ly be divided into three classes, first, those 
who insist that by a correct interpretation of 
the Constitution we can so forfeit them ; sec- 
ondly, those who insist that though, when we 
punish traitors by a trial and conviction, we 
cannot forfeit their lands in fee, nevertheless 
we may in some other mode than by trial and 
conviction punish them by a forfeiture in fee ; 
and, thirdly, those who insist that the law 
under consideration has nothing to do with 
treason ; that we are not dealing with traitors 
in the eye of the law ; are not seeking to pun- 
ish them for treason ; but that we are dealing 
with them as belligerents, and, by virtue of 
the law of nations, may confiscate their lands 
forever. 

I dissent from these propositions, and al- 
though I must express myself briefly, I de- 
sire to say a few words upon each of these 
points. I regard the question involved a very 
important one ; I feel as earnestly as man can 
feel, that the policy of Congress in reference 
to this question of confiscation has very much 
to do with the present and future welfare of 
the country ; and I would urge upon our pol- 
itical opponents that they have as deep an in- 
terest in this question as we have, their wel- 
fare is bound up in preservation of this Gov- 
ernment and this Union, and if we can satisfy 
them that this policy of confiscation is unwise, 
that it does not tend to the preservation of this 



Union and this Government, I should hope that 
they would vote with us on this question ; and 
I appeal to each man — not in the hope that 
in a brief half hour I can argue them into 
my belief — but I appeal to every man who 
differs with me to consult his own good judg- 
ment, and then say whether we can pass this 
law without violating the Constitution, with- 
out running against the laws of nations, or 
without inaugurating a policy which will be 
destructive rather than preservative of this 
Government in which we have all so much at 
stake. 

And, sir, first, what is the correct interpre- 
tation of the Constitution on this subject, and 
to that point I shall give but a few minutes 
of the time accorded to me. Let it be re- 
membered that when the Constitution was 
made, there were but two modes by the law 
of England by which a man's property could 
be forfeited in punishment of treason ; one 
was by bill of attainder, by an act of Parlia- 
ment which condemned a man and forfeited 
his estate without allowing him to be heard 
in a court of justice, and without any of the 
safeguards which, by the law of England, in 
the most arbitrary times, a man had, when he 
was brought into a court of justice and con- 
demned through its instrumentality. 

This mode the Constitution expressly p^fo- 
hibits in the language so often alluded to, 
"No bill of attainder or ex post facto law 
shall be passed." This mode of forfeiting 
estates for treason, to wit, by act of Par- 
liament, equivalent under our form of Gov- 
ernment to doing so by act of Congress, the 
framers of the Constitution deeijaed it wise to 
forbid absolutely, and they did so in the first 
article of that instrument by the provision I 
have stated. .;. 

There was then left the other mode known 
to the law of England of forfeiting a man's 
estate for treason, a political offense, namely, 
by trial and co;idemnation by a court of jus- 
tice. The framers of the Constitution made 
provisions as to this mode. In article three, 
section three, they define treason ; they de- 
clare that no person shall be convicted of this 
crime unless on the testimony of two wit- 



fI_-TO 



K^^ 



nesses, or on Mb confession in open court, and 
that Congress shall have power to punish it, 
hut in the same clause they provide that '• no 
attainder of treason shall work corruption of 
blood, or forfeiture except during the life of the 
person attainted." 

Now, sir, mark that the framers of the Con- 
stitution were in this article dealing with the 
only mode known to the law of England, after 
'the bill of attainder was abolished, by which 
a person could be punished by forfeiture of 
his estate for treason. They prescribe that 
"no attainder of treason" shall work forfeiture 
of estate except during the life of the person. 
What is the meaning of *' attainder of trea- 
son" in legal language f It is the effect, the 
consequence of judgment pronounced by the 
court against a person who had been tried 
and convicted of treason. Blackstone says : 

" Upon judgment of death, and not before, the at- 
tainder of a criminal eommeneesj and therefore 
either upon judgment of outlawry or of death for 
treason or felony, a man shall be said to be attain- 
ted." 

Again lie says : 

" Forfeiture does not take effect unless an attain- 
der he had, of which it is one of the fruits j and 
therefore if a traitor dies before judgment is pro- 
nounced, or is killed in open rebellion, or is hanged 
by martial law, it works no forfeiture of his land, 
for he never was attainted of treason." 

That is, he never was convicted and judg- 
ment pronounced against him for treason. 
"Attainder of treason," therefore, in its legal 
and constitutional sense, signifies one^of the 
consequences, one of the effects of conviction 
and judgment by a court for the crime of trea- 
son. This effect, by the law of England at 
the time the Constitution was made, was the 
forfeiture of the estate of the offender. When, 
therefore, the framers of the Constitution, in 
the article which defines treason, prescribe 
the evidence requisite to convict, and grant 
the power to Congress to declare its punish- 
ment, and declare that "no attainder of trea- 
son," that is, no conviction and judgment 
against a person for treason, shall work a for- 
feiture of his estate except during his life, is 
it not clear that they intended to, and by the 
language used clearly did, limit the power of 
Congress in punishing by forfeiture to the tak- 
ing of a life estate ? Is it not clear that we 
are forbidden by the Constitution to forfeit 
the lands of those in rebellion by way of pun- 
ishment for their treason against the Govern- 
ment, beyond their estates therein for life ? 

This is the construction given to this , por- 
tion of the Constitution by Mr. Madison in the 
Federalist. Judge Story is clear and unequivo- 
cal that this is its meaning. In section twelve 
hundred and ninety -two of his Commentaries 
on the Constitution, after speaking of the 
grant of power to Congress to declare the 
punishment of treason, he says : 

" Two motives probably concurred in introduc- 
ing it as an express power. One was, not to leave 
it open to implication whether it was to be exclu- 
sively punishable with death according to the known 



rule of the common law, and with the barbarous 
accompaniments pointed out by it; but to confide 
the punishment to the discretion of Congress. The' 
other was to impose some limitation upon the na- 
ture and estent of the punishment, so that it should 
not work corruption of blood &i forfeiture beyond 
the life of the offender." 

I appeal to gentlemen whether they will 
at this time, in the midst ©f civil war, un- 
der the influence, to a greater or less de- 
gree, of the passions which civil war always 
excites, attempt by ingenuity to interpret the 
Constitution differently from the sages who 
framed, and the learned commentator who, in 
peaceful times, gave . a construction to this 
part of it which commanded the approval of 
all who sought a correct interpretation of it. 
Unless the latter part of the clause of the 
Constitution under consideration limits the 
power of Congress in punishing treason by 
forfeiture, why was it inserted at all? The 
first part of the clause grants to Congress the 
power to declare the punishment of treason. 
If it was intended that there should be power 
to forfeit estates in fee the latter part is mean- 
ingless, I submit. 

Again, there is another fact to which I wish 
to call attention. Every man interpreting 
the Constitution or a statute should see what 
the law was when it was made. What was 
the law of England on this subject when our 
Constitution was made ? The framers of the 
Constitution were naturally acting on this 
subject in reference to the laws of England, 
whence we drew most of our laws and most of 
our traditions . Now, it should be re member ed 
that as early as 1708, by twenty- first chapter 
of Anne, the British Parliament abolished 
forfeiture for treason beyond the life of the 
offender. Chancellor Kent says that the hu- 
manizing and christianizing influence of mod- 
ern times and the force of public opinion had 
wrought to that degree in England, a land at 
that time often torn by treasonable factions 
and practices, that by that statute they chang- 
ed their law ; and although it may be true, 
qs the gentleman from "Vermont [Mr. Wood- 
bkidge} stated this morning, that in England 
the tenures to lands ^are different from ours, 
yet this was so then; and from that time 
down to this the law has been that no convic- 
tion of treason produced a forfeiture of estatt, 
beyond the life of the party convicted. The 
founders of our Government, the framers of a 
Constitution for a country which from its in- , 
stitutions would naturally have political ex- 
citements, factions, and treasonable practices 
perchance, think you that they meant to leave 
to the majority the right to do, in reference 
to forfeiting lands in punishment of treason, 
that which had been abolished in England for 
more than fifty years at the time this Consti- 
tution was made ? 

I therefore submit to gentlemen, to law- 
yers, to statesmen, to the construers of con- 
stitutions and statutes, whether they will 
stand for a moment on the interpretation 
that, by a fair reading of the Constitution, 



Weat. Ees. Hist;. 8oc. 



we liave power to take away as punisliment 
for treason anytSing but the life estate of the 
off-'Tider. 

Mr. DAVIS, of Maryland, My respect for 
the gentlemau's' opinion as a lawyer moves 
me to ask hiixi to indulge me in putting to him 
a single question ca which I wi=h to have his 
opinion. 

Mr. KERNAN. I will hear the gentleman's 
question. 

Mr. DATI3, of Mllyland. Does the gen 
tleman suppose that the prohibition in the 
Constitution applies to personal property as 
well as to real estate f 

Mr. KERNAN. Well, sir, I myself would 
so suppose on reading the Constitution, and I 
cannot see why it ought not to be so. And 
yet, altlK^ugh I have thought on that subject, 
the gentleman ^om Maryland will pardon me 
for not wishing to discuss it now, because 
"sufficient unto the day is the evil thereof." 
This legislation is with reference to taking 
the lands of the people of the South and con- 
fiscating them forever, it is our power to 
do this which I wish now to discuss. I fear 
it will be one of the most disastrous lines of 
policy on which w« can enter, hoping and de- 
siring as I do that we shall bring the mass of 
the inheritors of these lands and their fathers 
to live with us and our children in peace in the 
old Union and under a common Government. 

Gentlemen see what the law in England 
was at the time our Constitution was adopted. 
There was no forfeiture of lands in England 
beyond the life estate for treason. Gentle- 
men see that one mode of forfeiting estates, 
by bill of attainder, was prohibited in express 
language by the Constitution, They see what 
evidence was required by our Constitution 
for a conviction of treason ; and that it was 
declared that no attainder of treason ("that 
is, a conviction and judgment on a trial 
in a courtj should take away lands be- 
yond the life estate. Gentlemen see what 
have been the opinions of commentators on 
the subject from that time to this. I appeal 
to every lawyer here and throughout the 
land whether he ever dreamed that Judge 
Story was not right when he said that the in- 
tention of the framers of the Constitution was 
to limit the punishment by forfeiture for trea- 
son so that it would not extend beyond the 
life estate of the offender. 

Shall we not then adhere to this construc- 
tion of the Constitution, and legislate in ac- 
cordance with it ? Let us. not yield to this new 
interpretation, which has been put forth else- 
where, and which has been contended for here, 
and by which the clause in question is made 
to mean on^y that the proceeding against a 
party for treason or the attainder of treason 
must be during the lifetime of the traitor, 
"When bills of attainder were abolished I am 
not aware of any mode known to our or the 
English law by which a dead man could be 
tried or attainted for treason. 

Secondly, is it true, as argued by the gen- 
tleman from Ohio [Mr. Spaldihg] and others, 



that although the meaning of the Constitutioa 
is what wo claim on this side of the flouse, 
which he conceded, and that where a person 
is tried, convicted, and sentenced, his life es- 
tate only can be forfeited, nevertheless that 
his lands may be forfeited forever by act of 
Congress or in some other m.ode, provided we 
do not try or convict him at all, provided we 
take his lands by a proceeding wherein he 
has not the opportunity to prove lie is inno- 
cent of treason if this be true, and wherein it. 
is not rtqaired to confront him with "two wit- 
nesses'to the same overt act" to establish his 
guilt ? I submit that this position is not ten- 
able ; regarding the act of Congress under 
consideration as one to forfeit a man's prop-, 
erty for treason without trial, it is equivalent 
tea "bill of attainder," which is expresslj 
prohibited by the Constitution, and is* there- 
fore a void act. 

Bat, again, the wis9 men who framed tfee 
Constitution, when they declared in that in- 
strument that you could only forfeit a man's 
life estate where you giv(> him a fair 
trial in court and convict him of treason did 
not intend to be and were not so careless in 
reference to the principles of justice and of 
freedom, or so inconsistent as ta give power 
to the majority of a legislative body, likely to 
be often moved by political excitement and 
by partisan feelings, to forfeit forever the 
lands of a party for a, political offense without 
his having the benefit of a trial. No, sir, 
they were men who knew too well the dan- 
gers of such proceedings ; the history of pro- 
ceedings in England by bills of attainder 
was familiar to them ; they were too loyal to 
liberty and those principles by which alone 
free Governments are sustained and perpetu- 
ated to be guilty of such folly. 

The gentleman says that by this act of Con- 
gress we are dealing with men in armed re- 
bellion against the Government ; that we are 
not proposing to try them for treason. .What 
is armed rebellion against the Gt)verument 
but treason ? Can you punish by legal pro- 
ceedings armed rebellion differently by call- 
ing it by some other name than treason ? It 
is treason, and nothing else. Does tho gen- 
tleman mean to contend that while we cannot 
by trying and convicting the offender ef trea- 
son in a court of justice forfeit his land beyond 
his life estate we can under and by virtue of 
an act of Congress forfeit his land forever, 
without trial, without the evidence required 
by the court to convict him, and without his 
having an opportunity to be heard in his de- 
fense ? 

But I must pass from this pbint. Gentle- 
men say that this is a proceeding in rem, and 
that the right of trial by jury is got rid of be- 
cause it is a trial in a court of admiralty. I 
will not argue that question. With great 
deference to others, I ask any lawyer in the 
House where he ever heard of a proceeding in 
rem in a court of admiralty ajrar/isi real estate; 
where he ever heard of setting a court in mo- 
tion under our Constitution to proceed and 



oondemn lands because the owners had violat- 
ed the laws, acd that, too, without their being 
entitled to a trial before a jury ? 

It is not disputed that iu cases falling with- 
in admiralty and maritime jurisdiction ttie 
r^ourts of the United States may condemn 
property without trial by jury. But I am not 
aware that lands can be thus adjudicated and 
condemned, or that the court can, according 
to the Constitution, be vested with any such 
jurisdiction over real estate. In common law 
cases, as distinguished from those of admi- 
ralty and maritime jurisdiction, a party in the 
courts of the United States is entitled to a 
trial by j ury. The Constitution, article three, 
section two, provides that "the trial of all 
crimes, except in cases of impeachment, shall 
be by jury." Article seven of the Amend- 
ments declares, "in suits at common law, 
where the value in controversy shall exceed 
twenty dollars, the right of trial by jury shall 
be preserved. ' ' Again, the Constitution de- 
clares, "no person shall be deprived of life, 
liberty, or property, without due process of 
law." In view of these provisions of the 
Constitution, I submit to the House that so 
far as this law purports to authorize the courts 
to proceed in the manner of courts of ad- 
miralty and adjudicate upon, condemn, and 
Bell the lands of those charged with treason, 
it is unconstitutional and void. I submit to 
the sound judgment of every member of the 
House whether title to property can, under 
our Constitution and laws, be divested or con- 
ferred by such proceedings. 

Mr. Speaker, I pass from this question to 
the proposition which was put forth with so 
much boldness and ability by the gentleman 
from Pennsylvania, [Mr. Stevens.] He in- 
sists that the law under consideration has 
nothing to do with treason ; that it is not a 
law to punish treason or traitors ; that the 
people within the insurrectionary States are 
at war with the United States, and by this 
law we are dealing with them, not as rebels 
against the rightful authority of the United 
States, but as "alien enemies;" that the in- 
surgents are not subjects of the United States 
Government, but ot foreign States at war 
with the United States ; that the territory of 
the so-called Coafederate Sutcs is foreign ter- 
ritory ; that by the acts of secession and war 
against the authority of the Constitution and 
laws of the Union they have abrogated them, 
and are to be treated, daring the war and 
after resistance is suppressed, as foreign peo- 
ple, and their territory as foreign territory 
acquired by conquest. And he insists that 
by the law of nations we are authorized, re- 
garding them as foreign enemies, to confis- 
eate their lands in fee, absolutely and forever. 
I understand him to derive the authority to 
confiscate the lands of those in rebellion not 
from the Constitution, but from the law of 
nations. That I may not misstate his posi- 
tion, I extract the following from his remarks 
&s reported in the Globe : 



fiscation of property under any provision of thj 
Constitution. Then the law goes on to sfa'e how 
you are to seize and condemn property. It is to be 
seized and proceeded against in rem, accurding to 
the law for that purpose, and condemned. As 
what? As the property of traitors? ^o such 
thing. Condemned as 'enemies' property.' Does 
not that show that the Constitution has nothing to 
do with it on the question of treason ? Here are a 
body of men in arms against the XJnited States. 
Tbis act of Congress, so far as it refers to seizures 
of property in fee, refers to them as seizures of the 
property of alien enemies, to be treated as such." 
» » * a « * » 
" Others hold that, having committed treason, 
renounced their allegiance to the Union, discarded 
its Constitution and laws, organized a distinct and 
hostile government, and by force of arms having 
arisen from the condition of insurgents to the posi- 
tion of an independent Power de mcto, and having 
been acknowledged as a belligerent both by foreign 
nations and our own Government, the Constitution 
and laws of the Union are abrogated so far as they 
are concerned, and that, as between the two bellig- 
erents, they are under the laws of war and the laws 
of nations alone, and that whichever Power con- 
quers mav treat the vanquished as conquered prov- 
inces, and may impose upon them such conditions 
and laws as it may deem best." 

* * * * S * « » 
"In order rightly to determine this question we 

must inquire whether the ' Confederate States' are 
to be considered as a hostile people, entitled to no 
other protection or privileges than are due to for- 
eign nations a^ war with each other. Is the pre- 
sent contest to be regarded as a public war, and to 
be governed by the rules of civilized warfare, or 
only as a domestic insurrection, to be suppressed 
by criminal prosecution before the courts of the 
country ? If the latter, then the insurgents when 
proceeded against have a right to invoke the pro- 
tection of the Constitution and municipal laws. If 
the former, then they are subject to the laws of war 
a^one." s * * * * -a * 

" It is not a question of pusishing under the 
Constitution, but outside of it. These men are 
enemies,' and we are treating them as enemies ; and 
I have no doubt that as States they are at war with 
us." *#*»*»* 

" We do not so treat them until we have con- 
quered the country held by the Confederate States. 
Covered by the Confederate flag it is foreign 
country. When we do conquer it, it is a conquered 
country. Any other principle would render all our 
conduct inconsistent and anomalous." 

* ■» * « » » « » 
"From all this the legitimate conclusion is, that 

all the people and all the territory within the lim- 
its of the organized States which, by a legitimate 
majority of their citizens renounced the Constitu- 
tion, took their States out of the Union, and made 
war upon the Government, are, so far as they are 
concerned, subject to the laws of the States; and, 
so far as the United States Government is concern- 
ed, subject to the laws of war and of nations, both 
while the war continues and when it shall be ended." 
« « * « * -s « « 
" By the laws of war the conquerer may seize and 
convert to his own use everything that belongs to 
the enemy. This may be done while the war is 
raging to weaken the enemy, and when it is ended 
tho things seized may bo retained to pay the ex- 
penses of the war and the damages caused by it 
Towns, cities, and provinces may be held as a pun" 



Here is no attainder for treason, here is no con-ishment for an unjust war, and as security against" 



futare aggressions. The property thus taken is 
not confiscated under the Constitution after convic- 
tion for treason, but is held by virtue of the laws 
of war. No individual crime need be proved 
against the owners. The fact of being a belliger- 
ent enemy carries the forfeiture with it. Here was 
the error of the President when he vetoed the con- 
fiscation bill passed by Congress. In the confusion 
af business he overlooked the distinction between 
a traitor and a belligerent enemy." 

In answer to these positions I submit, and I 
put this to every member of the House, is not 
the act under consideration a law to punish 
treason ;— to punish men who have been or 
shall be engaged in rebellion against the right- 
ful authority of the Government of the Unit- 
ed States ; who have in violation of their duty 
and allegiance attempted and are now endeav- 
oring to overthrow the Government of the 
United States, which Government it is our 
right and duty to defend, and the authority 
of the Constitution and laws of which we have 
a right to compel them to submit to ? If we 
abandon this position — if it is true, that by 
this act we are legislating in reference to pub- 
lic enemies in the legal sense, and not in ref- 
erence to domestic traitors — I cannot believe 
that any considerable number of the members 
of the House would vote for the bill. Does 
one sovereign Power, while at war with an- 
other, enact laws confiscating the lands owned 
by individuals of and which lands are situate 
within the enemy's territory ? I submit it is 
an unheard-of proceeding. 

This law is one designed to punish treason, 
not to apply to public enemies engaged in a 
public war ; and it must not be in violation of 
the provisions of the Constitution of the 
United States. A public war is that waged 
by one people by its sovereign or Government 
against another which carries it on through its 
sovereign or governmeHt. This is not such a 
war. The United States wage it to suppress 
armed resistance by individuals owing obe- 
dience to its laws ; to retain its rightful juris- 
diction and authority over a portion of its ter- 
ritory. We are not waging war against a for- 
eign nation to redress a wrong or to vindicate 
a right, but we are employing armed force to 
suppress rebellion within our own territory 
against the authority of our Constitution and 
laws over it. 

It appears to me that if the gentleman from 
Pennsylvania [Mr. Stevens] is coi-rect, then 
secession is an accomplished fact. By the 
void and illegal ordinances of secession, and 
the armed rebellion against the authority of 
the United States Government in support of 
them, those in rebellion have ^ taken the 
Southern States out of the Union. This I 
deny. They have not abrogated the Consti- 
tution aiid laws of the Union as to the terri- 
tory or the people who inhabit it. By illegal 
violence they have and do prevent the enforce- 
ment therein of the Constitution and laws ; 
we have the right to and are engaged in re- 
storing their authority by suppressing the 
rebellion. In doing this we have certain bel- 



ligerent rights, but when this is acoompllshed 
the Southern States are a part of the Union, 
not by virtue of reconstruction or readmis- 
sion, not as conquered territory, but because 
they were never out of the Union. The ex- 
ercise of the jurisdiction of the Federal Gov- 
ernment is obstructed and suspended by armed 
insurrection within the territory of these 
States. When this is subdued the States 
remain constituent members of the Union, 
and the people within them are amenable to 
the Constitution and laws of the United 
States, to be protected by them in their rights, 
and to be punished as prescribed by them for 
their crimes. If the views of the gentleman 
from Pennsylvania [Mr. Stevens] are correct, 
then we should recognize the so-called Con- 
federate authorities ; then they are rightfully 
entitled to treat with the Government of the 
United States for and on behalf of the peo- 
ple of the States in which the rebellion 
exits. This I deny. These leaders, in my 
view, are usurpers, having no rightful au- 
thority to negotiate with the Government ef 
the United States on behalf of the Southern 
people. The States have not rebelled ; it is 
individuals or combinations of individuals 
within those States who have rebelled. The 
States are not to be punished or disfranchis- 
ed on account of the rebellion ; the individu- 
als who have violated the laws by organizing 
armed resistance are liable to be punished 
according to law when' we have overcome 
the insurrection so that the law can be en- 
forced. 

But, if it be conceded that this is a public war 
against a foreign enemy or government, and 
that the Southern people are to be regared as 
alien enerhies, and their territory when the 
rebellion is suppressed is to be deemed terri- 
tory acquired by conquest, rather than our 
own territory in which the authority of the 
Constitution and laws has been vindicated 
against rebels, we have no right by the law of 
nations to confiscate lands owned by private 
persons. What is the law of nations f I 
understand it to be that usage which prevails 
and is sanctioned by civilized and christian 
nations. The law of nations governing war 
and the rights of belligerents and conquerors 
is this usage among nations which has come 
to have the authority of law, and the viola- 
tion of which would subject the off'ending 
Government to ihe condemnation of the civil- 
ized and christian world. The gentleman 
from Pennsylvania [Mr. Stevens] contends 
that this law authorizes us to confiscate infea 
the lands of the inhabitants of the Southern 
States, and he derives our right to do so from 
this law of nations and not from the Constitu- 
tion ; that we do not forfeit their lands in pun ■ 
ishment of them for treason, but as a right 
over them which we have by the law of na- 
tions, treating them as persons who never 
owed allegiance to our Government, whom we 
had conquered. 

I submit that the law of nations as under- 
stood and practiced in modern times gives no 



such rigM ; and that all modem publicists 
and authorities are against the position con- 
tended for. 

Wheaton, in his Elements of International 
Law, page 420, says : 

"But by the modern usago of nations, which has 
now acquired the force of "law, private property on 
land is also exempt from confiscation -with the ex 
ception of such as may become booty in special 
cases when taken from enemies in the l.e!d, or in 
besieged towns, and of military contributions levied 
upon the inhabi'ants of the hostile territory. This 
exemption extends even to the case of an absolute 
and unqualified conquest of the enemy's ooui try. 
In ancient times both the movable and immovable 
property of the vanquished passed to the conqiier- 
or. Such was the Roman law of war, often asaurt- 
ed with unrelenting severity ; and such was the fate 
of the Roman provinces subdued by the northern 
barbarians on ihe decline and fall of the western 
empire. A large portion, from one-third to two- 
thirds of the lands belonging to the ■vanquished pro 
vinoials, was confiscated and partitioned amongthe 
conquerors. The last example in Europe of such a 
conquest was that of England by William of Nor- 
mandy, Since that period, among the civilized 
nations of Christendom, conquest, even when con- 
firmed by a treaty of peace, has been followed by 
no general or partial transmutation of landed pro- 
perty. The property belonging to the Government 
of the vanquished nation passes to the victorious 
State, which al.so takes the place o< the former sov- 
ereign in respect to the eminent domain. In other 
respects private rights are unaffected by conquest." 

Vattel lays down in substance the same law. 

Mr. Adams in 1816, in a letter to Lord Cas- 
tlereagh, said : 

"But as by the same usago of civilized nations 
private property is not the subject of lawful capture 
in war upon the land, it is perfectly clear that in 
every stipulation private property shaH be respect- 
ed, or that upon the restoration of places during the 
war it shall not be carried away." — 4 American 
State Papers, 116, &c. 

Chief Justice Marshall says, in 7 Peters, 
pages 86, 87 : 

" It may not be unworthy of remark that it is very 
unusual, even in cases of conquest, for the conquer- 
or to do more than to displace the sovereign and 
assume dominion over the country. The modern 
usage of nations, which has become law, would be 
violated, that sense of justice and of right which is 
acknowledged and felt by the whole civilized world 
would be outraged, if private property should be 
generally confiscated and private rights annulled. 
The people change their allegiance ,• their relation 
to their ancient sovereign is dissolved ; but their 
relations to each other and their rights of property 
remain undisturbed. If this be the modern rule 
even in cases of conquest, who can doubt its applica_ 
tion in the case of an amicable cession ot territory ?»» 

Another gentleman who has addressed the 
House stated that the law of nations author- 
ized the party successful in war to do what he 
pleased with the subjugated people. Vattel, 
who wrote over one hundred years ago, and 
when the lavv of nations was harsher than it 
can be successfully claimed to be at this day, 
says in Book III, page 388 : 

"But if the entire State be conquered, if the na- 
tion bo subdued, in what manner can the victor 



treat it without transgressing the bounds of justice ? 
What are his rights over tho ci-nquered country? 
Some have dared to advance this moustrr-us prin- 
ciple, that the couqueror is absolute ma;-tor of his 
conquest, that he may dispose of it as his property, 
that he may trciit ic as be pleases, according t j the 
common expression of treating a State as a con- 
qu-.red country; and hence they derive one of the 
sources of de.-potic government." 

I submit, sir, whether there is a member 
of tills tiotise who desires or is willing to have 
this great nation of ours, great and powerful 
as I believe it to be, able to vindicate itself in 
any juBt caiise, violate the usage of Christian 
and civilized nations ; disregard those rules 
and maxims which in the language of Chief 
Justice Marshall have become law ,■ and what- 
ever Government violates them, particularly 
if it be powerful and its opponent weak, sub- 
jects itself to the scorn and condemnation of 
the civilized world. Are we prepared to say 
that we are willing to enter upon a system of 
confiscation, in virttie of our rights as con- 
querors which the civilized world denounces, 
which Wheaton says has never been exercised 
in Christian Europe since the time of William 
t>e Norman, and which, he says, the code of 
civilized and Christian countries forbids under" 
the ban of being barbarous, and of going back 
to the times when force alone, uutempered by 
mercy or ('hristianity or civilization, rode de- 
structively over all that came in its way ? For 
the sake of the character of our country, for 
the sake of our reputation, claiming to be a 
great civilized and Christian people, for the 
sake of keeping that standing before the civ- 
ilized world which we are entitled to in this 
war, I protest against the idea that we are to 
enter upon a system of confiscation which has 
been ignored by civilized nations at war during 
the last five or six hundred years. Why, sir, 
it seems to me that nothing could be more 
fatal to us. While we stand before the world 
prosecuting this war to defend and maintain 
the Union, to subdue those who are endeavor- 
ing to destroy it, who are in arms to over- 
turn this beneficent Government, we will have 
the respect and sympathy of foreign nations. 
Let us not forfeit this position. Let us take 
DO step, inaugurate no policy which will au- 
thorize it to be said that we, over twenty mil- 
lion of people, are .waging a war against eight 
million with the purpose of making it a war' 
of conquest to strip them of their property, 
and to distribute it among camp-followers and 
speculators, among the men who are not of 
the Army when battles are to be fought, but 
who . follow in its wake to share in the 
plunder when with safety it can be reached. 
Story says,' in substance, that one of the rea- 
sons for prohibiting confiscation for treason 
beyond the life estate was to cut off that 
swarm of greedy and insatiate plunderers who 
are ever, under theory of loyalty and the public 
good, pushing those in power on to vindictive 
measures, with no higher or more patriotic mo- 
tive than a desire to share in the plunder which 
they call for in the name of patriotism. 



Sir, if the gantlemas from Pennsylvania 
[Mr. Stevens] is right, we oaght to recog- 
nize these Confederate authorities. Then 
they are the leaders of the people waging 
war with U3, rightfully their leaders. I 
have been opposed to recognizing them, op- 
posed to negotiating with them. I con- 
sider them, in the language of a resolution 
for which I voted, usurpers and traitors, hav- 
ing no right or authority over the people of 
the South and no right to bind them ; and 
therefore I have been for overthrowing them, 
■for scattering their armies, for delivering 
from their rule the mass of the people of the 
South who owe allegiance to this Govern- 
ment, and whom the Administration should 
desire to bring back under the Constitution 
and laws of the Union, that we may go on 
hereafter peacefully and happily as we have 
hitherto in a career of individual and national 
prosperity. 

But again, if we had the constitutional and 
legal right to forfeit forever the lands of the 
mass of the people who have taken part in this 
rebellion, to turn them and their children 
from them, and sell them to others, do gen- 
tlemen believe it would be a wise policy to do 
so ? Would this tend to the speedy sup- 
pression of resistance or to that state of things 
among the people of the southern States 
which all, when they divest themselves of the 
irritation produced by this civil war, must 
hope and desire to see after it is successfully 
ended ? I consider that our main object is to 
bring the mass of these people back to form a 



part of and strengthen our Government. Do 
gentlemen believe that such legislation as this 
under consideration will aid in this matter ? 
Will it not strengthen those leaders in the 
South? Will they not be able to point to 
it and say to their people, "You have nothing 
to hope for but victory or death ; you see it 
declared by the legislative assembly of the 
United States that we are alien enemies, and 
that they have the right to forfeit all our 
lands, and are disposed to do it ?" Will it not 
be worth everything to them in those despair- 
ing times of their rebellion ? Will it not en- 
able the leaders to stimulate and intensify the 
southern people by pointing to the Congress 
of the United States as being engaged in mak- 
ing laws the policy and effect of which will be 
to take from the mass of the people of the 
South and their children all their property ? 
Let us rather unite our people and exert all 
our power in overthrowing' armed resistance, 
showing at the same time that when that is 
overthrown the mass of the people in these 
States are not to be treated as a conquered or 
subjugated people, but dealt with according to 
the Constitution and laws of the Union ; that 
as to the mass there will be amnesty on lib-- 
eral terms,. to the end that they may be con- 
tented citizens of this Kepublic ; that they 
may again be devoted to the Union ; that they 
may return feeling how much they were 
wronged by the leaders who led them into this 
rebellion, and how much they profited by its 
overthrow and the restoration of the authority 
of the Constitution over them. 



